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Does a Lawsuit End If the Defendant Can’t Be Served?

Remember Seth Rogen's character in Pineapple Express? No, he wasn't a butler -- he was a process server, an obscure yet essential part of the legal system tasked with delivering the bad news of a lawsuit to the person being sued. After all, if people don't know they're being haled into court, it's kind of hard to defend themselves. Because service of process is the necessary first step to a lawsuit, many think if they can just avoid the process server for long enough, they can't be sued (hence Rogen's disguises). But is that true? Fruitless Searching The issue has come to the forefront of the news after Montana real estate agent Tanya Gersh sued the owner of the racist website Daily Stormer, claiming he unleashed a "tsunami of threats" against her and her family. Gersh is being represented by attorneys from the Southern Poverty Law Center, who have thus far been unable to locate and serve Andrew Anglin with the suit. The process servers hired by the SPLC have made a grand total of 15 visits to seven addresses linked to Anglin, including four different Ohio addresses, but couldn't find him. "One process server said she believes Anglin barricaded himself inside one of the addresses," according to Ars Technica. In addition, attempts to serve Anglin via certified mail were all returned as undeliverable. Until he is properly served, the lawsuit against Anglin can't proceed. Constructive Notice But there's another twist to that -- service by publication. If a plaintiff can show the court that no other method of service has been effective, they can publish a notice in a newspaper. So long as the newspaper is in general circulation where the defendant is likely to be found or where the court is located and is published on more than one occasion (like weekly for three weeks), the court will consider the defendant served, whether he or she actually reads the notice or not. Gersh's attorneys have allegedly begun this more cumbersome and expensive procedure already. The perhaps not-so-funny part about the efforts to serve Anglin in this case is that he is plainly aware of the lawsuit. Soon after the lawsuit was filed in April, he published a post on Daily Stormer entitled, "SPLC is Suing Anglin! Donate Now to STOP THESE K***S!" He retained Las Vegas attorney Marc Randazza, who told the AP, "Everybody deserves to have their constitutional rights defended." Randazza also addressed the service problems and accusations that he had ignored calls and emails from SPLC attorneys asking him to accept service on behalf of his client, albeit rather obliquely. "Would you say that touchdowns are avoiding being scored in a shutout football game?" he rhetorically asked the New York Times. "Or would you say that the offense is not scoring them?" A defendant has no legal obligation to assist the plaintiff in a lawsuit, including making themselves available for service. Fortunately for plaintiffs, hiding from a lawsuit they clearly know exists won't help a defendant avoid being held accountable in court. Related Resources: Find a Lawyer Near You (FindLaw's Lawyer Directory) Don't Bother Avoiding Process Servers (FindLaw's Law and Daily Life) Legal How-To: Showing Proof of Service (FindLaw's Law and Daily Life) Can You Serve Someone With a Lawsuit via Twitter? (FindLaw's Law and Daily Life)
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How Does the iPhone’s New ‘Cop Button’ Work?

Cell phones have been the new frontier in search and seizure law, and for a while they've been giving fits to law enforcement and the courts. Can customs search your cloud data at the border? Can the feds force tech companies to provide access to phone data? Can a warrant give police access to everyone's phone at a given location? Can police 3-D print a finger to unlock a phone? Wait, what? It may seem weird, but courts actually treat passcodes and fingerprints differently when it comes to unlocking phones, and more and more people are becoming aware that their phones are actually less secure (from law enforcement anyway) with fingerprint access. So, naturally, Apple came up with a fix for that -- the "cop button." Physical Evidence and Metaphysical Contents More accurately, as the Verge describes, it's like a cop sequence of taps. Apple's upcoming iOS11 for the iPhone will let users tap the power button five times for emergencies. This then allows someone to dial 911 while also disabling the phone's Touch ID feature until they enter a passcode. Essentially, Apple is giving iPhone users "a far more discreet way of locking out a phone." Those who haven't been following recent search and seizure case law may be asking themselves why locking out a phone would be useful, or having a passcode accessible phone would be any more secure from police searches than a fingerprint accessible phone. As we mentioned above, courts, and thus law enforcement, treat them very differently. Combinations and codes, to an individual, have generally been considered the "contents of his own mind," and therefore beyond the government's power to compel production. Whereas keys and fingerprints are physical evidence, which "may be extracted from a defendant against his will." FaceTime? There's another reason this distinction may matter, and why the "cop button" may be necessary in the near feature. Apparently, iOS 11 will also introduce face unlocking on the next iPhone. Giving law enforcement another piece of physical evidence that grants them access phone, and giving users another reason to have a way to disable that access. Different jurisdictions have been treating cell phones -- and the ways in which law enforcement may force people to unlock them -- in different ways. To find out the law where you live, contact a local criminal defense attorney. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Can the Feds Force You to Unlock Your Phone With Your Fingerprint? (FindLaw Blotter) Florida Judge: Give Up Your Smartphone Passcode or Go to Jail (FindLaw Blotter) Are Warrantless Cell Phone Searches Legal? (FindLaw Blotter)
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When Can You Sue for PTSD for Auto Accident Injuries?

When a person is injured in an auto accident, they may be entitled to recover monetary damages for their injuries. In some circumstances, an injury victim can be entitled to recover after suffering an emotional, or mental health, injury, such as post traumatic stress disorder (PTSD), as a result of a car accident. Unless the mental health injury rendered a person incapacitated, they will need to file a lawsuit within the normal time period allowed by their state to file. While uncommon, in severe auto accidents, particularly when there is a loss of life, severe injuries, or maybe just a whole lot of property damage, it is easily foreseeable that an individual could suffer from PTSD. However, to establish a personal injury case based upon a PTSD diagnosis can be rather challenging. Unlike broken bones, cuts, bumps, and bruises, a mental health injury may not visible on the surface. Problems of Proof When suing for a PTSD injury related to a car accident, a plaintiff will need to prove that a qualified doctor made an accurate PTSD diagnosis and that the diagnosis is attributable, at least in part, to the accident. To accomplish this, it is highly likely that expert medical witness testimony will be required. However, despite what a medical expert states, other problems could arise if the accident was only a minor accident, or there are other tragic incidents, particularly recently, in the plaintiff’s past, or a prior diagnosis for PTSD. However, even if a diagnosis may not be attributable to an accident, a flare up of PTSD symptoms may still be relevant. In other words, it can be claimed that a car accident made an individual’s PTSD worse. One Bite of the Settlement Apple A significant problem with PTSD auto accident claims is the timing of a settlement. Frequently, injury victims will settle their cases within 6 month or a year after their injury without ever filing a lawsuit. Just as frequently, PTSD can go undiagnosed for months, or longer if a victim does not have a solid support network. Unfortunately, in nearly every state, once a person settles a personal injury claim, they cannot reopen the case unless there are extraordinary circumstances, such as a fraud in the inducement to sign. Typically, an undiscovered injury will not qualify to reopen a settled case. Related Resources: Injured in a car accident? Get your claim reviewed by an attorney for free. (Consumer Injury) Can You Sue Over Mental Stress, Trauma? (FindLaw’s Injured) Can You Get Workers’ Comp for PTSD? (FindLaw’s Injured) 5 Ways to Prove Emotional Distress (FindLaw’s Injured)
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Driver Liability for Cell Phone Related Car Accident

How an accident happens will largely determine who is ultimately held liable. If the at fault driver was found to have caused the accident while talking or texting, they will likely have more difficulty defending their case, and they may potentially face additional penalties. Nearly every state has laws on distracted driving, and most include some limitations on the use of cell phones by drivers. Regardless of whether you have an ear piece, integrated Bluetooth, or speakerphone system, if you are talking or texting on a cell phone while driving, an officer or other party can claim that you were driving while distracted. According to the most recent report by the NHTSA, one in ten on the road fatalities involved distraction. Accidents While Phoning or Texting If a driver is found to be at fault for an accident, then they can also be found liable for the injuries and property damage they caused. While a majority of auto accident cases settle out of court, the facts concerning how the crash happened are relevant to establishing the injured party's case for damages. When a jury is asked to decide an auto accident injury case, they will usually be tasked with deciding two primary issues:Whether the defendant caused the injuries and damages.How much money should be awarded to the plaintiff for suffering the injuries and damages. In most jurisdictions, if both parties are considered to be partly at fault, or fault is uncertain, the party that is found to be more than 50% at fault, generally is the party held responsible for the damages. If a party was on the phone when the accident occurred, they may be found some percentage (comparatively) at fault. In states like California, if a driver is found to be 25% at fault, any award they receive will be reduced by their percentage of fault. Rear-Ended While Talking on the Phone There are some auto-accident cases where it won't matter if the victim was on the phone or texting. If you are stopped at a red light, and you get rear-ended while texting or talking on the phone, it is highly unlikely that your texting or talking had anything to do with causing the accident. In this sort of a situation, your phone use, while still potentially against the law, generally cannot be used to attack liability. Related Resources: Find Personal Injury Lawyers in Your Area (FindLaw's Lawyer Directory) What's More Dangerous Than Texting and Driving? (FindLaw's Injured) 1 in 4 Car Crashes Involves Cell Phone Use: Report (FindLaw's Injured) Is Apple Liable for Distracted Driving Accidents? (FindLaw's Injured)
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Personal Injury Lawyer Dropped Your Case? Now What?

It happens all too often. A person hires a lawyer right after an accident, then months later when the medical treatment is all done, the lawyer they hired decides they no longer want the case. Don’t read into it too much. Some lawyers only handle cases if they are of a certain value or above. So unless your lawyer has ceased communicating with you, there are a few steps you can take to make sure your case can be smoothly transitioned over to a new attorney. However, if your lawyer has ceased communicating with you, it might be a good idea to get a new lawyer, and have your new lawyer attempt to connect with the old lawyer. On rare occasion, lawyers get sick, die, or just plainly go missing without warning, just like any other human being. The most important thing is to find out your statute of limitations date, because if you don’t file a lawsuit by that date, your claim will expire. 1. Ask Your Old Attorney to Delay Withdrawing Until You Find a New Attorney Attorneys will often recommend that you find a new attorney before they formally withdraw from representation, even when there has been a breakdown in the attorney-client relationship involving anger and animosity. Attorneys are generally agreeable to this arrangement because it will avoid injuring a client’s case. If you are firing your attorney, however, this request will likely not go over well. 2. Figure Out Your Lien Situation Personal injury cases, if handled on a contingency basis (which they typically are), may have lien provisions included in the attorney fee agreement. When an attorney drops your case, if your contract had one of these provisions, you need to get a letter from the attorney clearly stating whether they have a lien, or not, and if so, for how much. A lien is a typical contract term in a contingency fee contract that allows an attorney to place a claim for payment on your case, and requiring that they be paid from any eventual settlement or judgment issued in the case for the work they did on your case. When an attorney drops a case, they usually do not assert a lien, unless they have expended a significant amount of money or time on the case. Even then, some attorneys will release their liens in order to make it easier for a client to retain a new attorney, as a second attorney may be hesitant to take a case that has a lien attached to it. However, any new attorney will likely ask and want to know about liens before formally accepting representation. 3. Find and Hire a New Attorney Don’t delay. The longer you wait to find a new attorney, the less time the new attorney will have to prepare your case. FindLaw has a personal injury lawyer directory that you can browse for free to find an experienced injury attorney in your area. Related Resources: Injured in an accident? Get your claim reviewed by an attorney for free. (Consumer Injury) 5 Controversial Medical Treatments Still Used Today (FindLaw’s Injured) Chemical Spill in Kansas Hospitalizes Over 100 People (FindLaw’s Injured) Is Apple Liable for Distracted Driving Accidents? (FindLaw’s Injured)
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Sandy Hook Victims’ Families’ Lawsuit Dismissed Against Gun Maker

Recently, a Connecticut judge dismissed the lawsuit brought by the families of the victims of the Sandy Hook massacre against the gun manufacturer of the weapon used for the killings. Pursuant to a 2005 act signed into law by George W. Bush, the Protection of Lawful Commerce of Arms Act (PLCAA), the case was dismissed as the judge ruled the gun manufacturer could not be held liable. Under the PLCAA, a gun manufacturer or dealer cannot be held liable for how a gun is used if the gun was sold legally. The families of the victims based their lawsuit on a theory of negligent entrustment, which is one of the few exceptions to the PLCAA. Gun Manufacturers and Dealers Are Immune The PLCAA protects gun manufacturers and dealers from liability for how their guns are used so long as the sale of the weapon was lawful. In the Sandy Hook case, the shooter did not purchase the weapon, but rather obtained it from his mother, whom he killed. As such, making the argument that the dealer was negligent by entrusting the weapon to the killer just does not work as neither dealer, nor manufacturer, had any interaction with the actual killer. The judge in the matter also explained that the 2005 PLCAA intended to give gun dealers and manufacturers broad immunity. A Never-Ending Battle The attorney for the families has pledged to file an appeal and continue fighting. While the fight may seem futile, especially given the PLCAA broad protections for gun dealers and manufacturers, the attorneys and victims’ families believe very strongly that the gun manufacturer should be held liable. As part of their negligent entrustment theory, they claimed that the manufacturer and dealer were negligent by entrusting anyone with the weapon as it is designed to kill people. The manufacturer denies that claim, and convinced a court that the PLCAA prevents them from being liable at all. As a counterpoint, gun groups view this lawsuit very differently. They point out that the AR-15 rifle, which was the one used in Sandy Hook, is one of the most common rifles sold in America, and that it is not an automatic assault rifle, despite the aggressive, militarized look. Additionally, pro-gun groups argue that the PLCAA protections are reasonable, and that the person who pulls the trigger, not the company that makes the trigger, should be liable. Related Resources: Injured by a gun? Get matched with a local attorney. (Consumer Injury) Chemical Spill in Kansas Hospitalizes Over 100 People (FindLaw’s Injured) When to Sue a Chiropractor for Injury (FindLaw’s Injured) Is Apple Liable for Distracted Driving Accidents? (FindLaw’s Injured)
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5 Controversial Medical Treatments Still Used Today

It's easy to look back at medieval medical practices and wonder how they ever thought it would work. Theories about the four bodily humors may seem quaint in retrospect, but given the way medical knowledge and technology evolves, it's almost certain future generations will look back at medicine in our time and similarly wonder what we were thinking. So which controversial medical treatments are still in practice? Here's a look at a few. 1. Removing Part of the Skull to Relieve Pressure in the Brain As WebMD notes, a craniectomy for patients suffering from brain swelling can save a person's life, but also leave them permanently disabled. A recent study found that the procedure "can drastically reduce risk of death, with about 30 percent of patients dying following the procedure compared to 52 percent of those treated with standard medical care," but at the same time, "people treated with a craniectomy were three times more likely to wind up in a vegetative state ... and often were as likely to suffer long-term disabilities as patients receiving standard medical care." 2. Chiropractic Treatments It's a running theme -- among non-chiropractors of course -- that chiropractors aren't medical doctors. And as a recent Pain Science article noted, "The concepts of chiropractic are not based on solid science and its therapeutic value has not been demonstrated beyond reasonable doubt." Which is not to say chiropractic treatments don't work, just that their scientific basis hasn't been established. 3. Electroshock Therapy Ernest Hemingway blamed it for his memory loss and diminishing writing ability late in his life. According to Live Science, "Today, the therapy is safer, because patients receive anesthesia and electricity doses are much more controlled ... Still, the treatment can impair short-term memory and, in rare cases, cause heart problems." 4. Leech Therapy If you thought doctors stopped applying leeches to patients in the dark ages, think again. Heathline notes that leech therapy is making a comeback, treating "nervous system abnormalities, dental problems, skin diseases, and infections." Even Demi Moore thinks so. 5. Maggot Therapy Battlefield surgeons first started to notice that injured soldiers would heal more quickly in the field if flies laid eggs in their wounds. Later studies revealed that fly larvae "secrete digestive enzymes that can dissolve the wound's dead and infected tissue, a process known as debridement." Even though the FDA cleared maggots for medical use in 2004, it doesn't sound all that appealing. If you have been injured by a medical procedure, you may be able to seek compensation through a medical malpractice claim. Contact a personal injury lawyer today to find out if you have a case. Related Resources: Have an injury claim? Get matched with a local attorney. (Consumer Injury) 5 Signs You May Need a Medical Malpractice Attorney (FindLaw's Injured) Should Doctors Have to Tell Patients If They're on Probation? (FindLaw's Injured) Can You Sue a Doctor for Lying? (FindLaw's Injured)
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Chemical Spill in Kansas Hospitalizes Over 100 People

Last week, a Kansas-based manufacturer of food and beverage products accidently released a toxic chemical gas, a mixture of sodium hypocholorite and sulfuric acid, which sent over 100 people to the hospital. Fortunately, of the 125 people who sought medical attention, only two required an overnight stay in the hospital. MGP Ingredients, which was responsible for the spill, explained that the gas spill had dissipated after only a few hours. Additionally, the company has reported the incident to the EPA and plans to fully cooperate with the investigation. The company is also taking additional measures to avoid any future spills by engaging outside experts to investigate and assess the situation. How a Gas Spill Leads to Hospitalization While large gas spills are not everyday news, it is not an uncommon occurrence for people to be hospitalized for exposure to toxic gases. Most commonly it is due to carbon monoxide, which nearly everyone has been warned that it is the silent killer. Unfortunately, when a large gas spill happens near populated areas, individuals in the surrounding areas can have their health impacted. Usually, it is just for a short duration and only effects people within a certain radius from the spill. When the air that people breath has its chemical concentration changed, people can begin to notice problems, such as: Shortness of breath Light-headedness or dizziness Headache Nausea The symptoms can vary from severe to mild, from person to person, and in type or duration. For instance, a person with asthma, or another respiratory condition, will likely be more severely affected than someone without a respiratory condition. Can a Company Be Held Liable for a Chemical Gas Spill? When a toxic gas spill occurs, manufacturers can not only be held liable to the public for violations of anti-pollution laws, but can also be held liable to individuals who were injured, and/or affected, on a negligence theory. Since public gas spills tend to be atmospheric, meaning that a company released gas outside and not inside their buildings or buildings own by others, people generally are not severely affected. Nevertheless, companies can still be held liable for injuries or damages that an accidental release of gas can cause. The numerous people who went to the hospital as a result of the recent Atchison, Kansas gas spill may have potential claims or lawsuits against MGP Ingredients as a result of the spill. While injuries of a very short duration may not be valued very highly, medical bills as well as incidental or special damages can also be assessed, in addition to damages for pain and distress. Related Resources: Injured in an accident? Get matched with a local attorney. (Consumer Injury) Health Hazards (FindLaw’s Injured) Samsung Hit With First U.S. Lawsuit for Exploding Note 7 Smartphone (FindLaw’s Injured) Student Slips in Vomit, Suffers Brain Damage, Sues School for $1.3M (FindLaw’s Injured)
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When to Sue a Chiropractor for Injury

When a chiropractor’s medical treatment causes a patient injury, that patient may be able to sue. While chiropractors are not medical doctors, they can still be liable for malpractice or professional negligence. State laws differ on what the action might be called, but each cause of action generally considers the same elements to prove a claim against a doctor or a chiropractor. Injures alleged against chiropractors can be serious. For example, it was discovered that a famous model, Katy May, died at the age of 34 allegedly as a result of chiropractic treatment. After suffering from an on-set fall during a photoshoot, she hurt her neck. When the pain did not resolve itself, she sought chiropractic treatment. As a result of the treatment, an artery in her neck was pinched which caused her to have a stroke and die following the treatment.Although this situation may sound like a textbook case of medical negligence, that may not necessarily be the case. Establishing Medical Malpractice Against a Chiropractor Proving a medical malpractice involves showing that your treating doctor did not exercise the usual standard of care that a reasonable doctor, in your doctor’s situation, would have exercised during your treatment, and that it was that failure to exercise that standard of care that caused the injury. What this means is that if your doctor was doing the same thing that any other doctor would have done in their shoes, then regardless of the result, there likely would not be a case. In Ms. May’s case, if a lawsuit is ever filed, it will need to be shown that the chiropractor failed to exercise the usual standard of care that chiropractors generally exercise. For instance, if it is discovered that May did not receive x-rays before having her neck adjusted, then the doctor could possibly be considered to have not exercised the usual standard of care. May’s representative or family would still need to prove that the injury was caused by the chiropractor’s actions, and not some other cause. When to Sue a Medical Professional You generally have at least one year to file your case. In some states, medical malpractice or negligence claims have a different statute of limitations than injury claims. Additionally, there is one important requirement that applies to medical malpractice claims in most states, you may be required to provide notice of the claim to the medical professional, and the hospital, before filing a lawsuit. In California, for instance, you must notify the doctor and hospital within 1 year of discovery (but not more than 3 years from the date of injury), and once you notify them, you have to wait 90 days to file a lawsuit. Deadlines to file lawsuits against medical professionals are strictly enforced, which can be very burdensome especially while dealing with an injury. If you think you have a claim for medical malpractice or negligence against a chiropractor, doctor, dentist, or other health care professional, contact an experienced medical malpractice attorney as soon as possible. Most injury attorneys provide free consultations over the phone and may even be willing to look over your medical records free of cost. Related Resources: Injured in an accident? Get matched with a local attorney. (Consumer Injury) Medical Malpractice (FindLaw’s Learn About the Law) 3 Moms Sue Hospital and Doctor for Botched Deliveries (FindLaw’s Injured) Can You Sue a Doctor for Lying? (FindLaw’s Injured)
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Can Your Fitbit Data Be Used Against You in Court?

When police come to question you as a suspect in a crime, you know the rules: anything you say can be used against you in court. So, you don't say anything. However, your Fitbit may talk loud and clear on your behalf. For example, earlier this year, Jeannine Risley called the police claiming she had been sexually assaulted while asleep by a "man in his 30s, wearing boots." Instead of searching for and arresting the supposed attacker, police charged Risley with a crime. Why? Blame her Fitbit. Fitbit: Tracking Data That Doesn't Lie Jeannine Risley is one of millions of people who have a Fitbit. A Fitbit is an activity tracker that users wear around their wrist. The device measures the user's exercise level, diet, and sleep. Users can download data from the Fitbit onto their smartphones or computers to see how many steps they took, distance traveled, calories burned, and even hours asleep and awake. Risley was wearing her device on the night of the alleged attack. According to Risley, she lost the Fitbit during her struggles with the assailant, but police were able to find it. With Risley's password and permission, police downloaded the activity data from her Fitbit device. Surprise, surprise. While Risley claimed to be sleeping all night, the Fitbit data showed she was awake and walking around all night. The Fitbit data along with other forensic evidence showed that Risley may have falsified the rape claim. So, instead of being treated like a victim, Risley was charged with false report to law enforcement, false alarms to public safety, and tampering with evidence. Is Fitbit Data Admissible Evidence? In the case of Riley v. California, the Supreme Court ruled in a unanimous decision that police cannot search digital information on a cell phone without a warrant. By this logic, police generally cannot access data on electronic devices without a warrant either. However, with a warrant, police will be able to use your Fitbit data (and data from other motion tracking devices) as evidence against you in court. On the flip side, you may be able to use such data to prove an alibi. The biggest disadvantage to relying on activity tracking device data is that it may not be entirely accurate. Risley's case is not the first time Fitbit data was used in a legal case, and it's likely not to be the last. If the police try to use your Fitbit data against you, consult with an experienced criminal defense attorney for help. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw's Lawyer Directory) Police: Woman's fitness watch disproved rape report (ABC 27 News) 5 Ways Instagram Can Lead to Legal Trouble (FindLaw's Law and Daily Life) Here's What Facebook Sends the Cops When They Subpoena Your Activity (FindLaw's Law and Daily Life)
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